Suppression of Independent Candidates is the Source of Our Political Discontent

People of all political stripes are unhappy with the state of politics and government at the moment. The reason is that the two-party system is not working. The Republicans and Democrats have become like gangs whose only interest is gaining and keeping political power instead of using the political process to consult the voters on how to confront the serious issues facing the nation.

The U.S. Constitution does not mention political parties. There were no parties in the beginning. Parties emerged organically from the practical necessity of governing when the president is selected by thirteen or more states and by electing legislators by a "first past the post" electoral system.

There have always been two major groupings, the Federalists and anti-Federalists at the beginning, then Democratic-Republicans that supplanted the anti-Federalists as Federalists morphed into the Whigs. The first third party to win the White House was Republican Abraham Lincoln, who ran on an anti-slavery platform in 1860. The Republican Party had been founded six years before Lincoln's victory in opposition to the Kansas-Nebraska Act, which permitted slavery in the western states. His victory precipitated the Civil War as the Democrats claimed the states' right to dissolve the union.

After the Civil War, the Republican Party became one of the two major groupings. Nevertheless, since then, there have been many third parties locally and nationally that have had a major impact on elections: the Progressive Party and the Prohibition Party, to name two. Third parties are often one-issue oriented and fail to win office because the major parties nibble at their programs for tactical advantage at the polls. So, while neither the Progressive nor the Prohibition parties ever won a significant number of offices, eventually, their issues were adopted into law by the two major parties. In short, the threat from minor parties is what keeps the two parties from ignoring certain issues.

The Effective Outlawing of Independent Candidates

Historically, there have often been third-party candidates in presidential elections. In 1948 former Vice-President Henry Wallace ran as a Progressive, while Governor Strom Thurmond ran as the States' Rights - Democratic candidate against the civil rights movement. Both got less than 3% of the vote, but Thurmond received 39 electoral votes and carried four southern states. It was widely assumed that the candidacies of Wallace and Thurmond, defectors from the left and right of the Democratic Party, would doom the re-election chances of President Harry Truman. To everyone's surprise, Truman won convincingly, 303 to 189, in the electoral college and by 4.5% in the popular vote. Independents Thurmond, Wallace, Socialist Norman Thomas, and others received 5.38% of the vote, more than Truman's margin of victory. More than one out of every 20 voters did not cast ballots for the two major parties.

In 1960, there was also an independent segregationist candidate for President, Senator Harry Byrd of Virginia. Strom Thurmond was his vice-presidential running mate. Kennedy and Nixon were running and agreed to have the first televised debate. The only sticking point was the Equal Time provisions of the Federal Communications Act. Broadcasters were required to provide equal time to all candidates for the same office.

Kennedy and Nixon wanted to debate without Byrd and Socialist-Labor candidate Eric Hass. So, Congress passed a bill suspending the Equal Time provision of the Federal Communications Act to permit Nixon and Kennedy to face each other alone. Lyndon Johnson, Kennedy's vice presidential running mate, was the Senate Majority leader and shepherded the equal-time suspension through Congress.

In the final result, the independent candidates managed to receive only 0.72% of the vote, but that was still bigger than the 0.17% margin between Kennedy and Nixon. Both major party candidates were kept below a majority, 49.72% to 49.55%, a clear sign that voters care about a level playing field in politics. The exclusion of Byrd is probably the proximate cause of the Vietnam War. It permitted Nixon and Kennedy to make the Communist threat and the missile gap the major campaign issues while ignoring the powder keg of domestic racial segregation.

After Kennedy was assassinated, Johnson became president, leaving the vice presidency vacant. Congress passed, and the states ratified the 25th Amendment to the Constitution on Presidential Vacancy. Heretofore, Congress determined the line of succession if the presidency and vice presidency became vacant. The 25th Amendment clarified that the Vice-President becomes president in the event of a vacancy. It provides a mechanism for removing a President in the case of disability, resolving a problem first raised after President Woodrow Wilson's stroke during his second term. The Amendment also surreptitiously wrote political party nomination procedures into the Constitution by providing for the president to pick someone to fill the vacant Vice-President position who would then be confirmed by a majority vote of both Houses of Congress.

Although the 25th Amendment was sold to the American people as a remedy for the accidental death or disability of the president, it was first used for totally political purposes. After Vice-President Spiro T. Agnew was forced to resign for accepting cash bribes from contractors when he was Governor of Maryland, Nixon appointed House Minority Leader Congressman Gerald Ford of Michigan to become Vice-President. Ford had been a member of the Warren Commission investigating the assassination of John F. Kennedy. He allegedly kept Federal Bureau of Investigation Director J. Edgar Hoover appraised of the progress of the Warren Commission's internal deliberations and ensured that the bureau would not get the blame for any of the security lapses that resulted in Kennedy's death.

Nixon was forced to resign on August 9, 1974, as a result of the Watergate scandal. The scandal was primarily the result of Mark Felt, the number two man at the FBI, leaking information from the investigation to two reporters for the Washington Post, a completely unethical, if not illegal, act. In a preview of what was to come later in the Trump investigations, federal prosecutors zeroed in on John Dean, Nixon's counsel, and offered him a plea bargain in exchange for his testimony against the president. Most people would go to jail if their lawyers testified against them.

After Nixon's resignation, Ford became the first person to enter the White House without having been elected either President or Vice-President. Ford then appointed New York Governor Nelson Rockefeller to be Vice-President but then chose Kansas Senator Bob Dole as his running-mate for the 1976 ticket. This revolving door of the nation's highest offices came to an end with the election of Jimmy Carter.

Watergate and the Federal Election Campaign Act

Even before the Watergate break-in, the capital was awash in financial scandals. For example, lobbyist Dita Beard wrote a memo detailing her offer of donating $400,000 to the expenses of the 1972 Republican National Convention in exchange for quashing a Justice Department anti-trust investigation of her employer, the International Telephone and Telegraph Company.

So, after Nixon resigned, Congress decided the source of the problem was dirty money in campaigns and passed amendments to the Federal Election Campaign Act that provided quasi-public funding for political candidates. The Act gave matching funds upfront to Republican and Democratic candidates but less or nothing to others. Third-party or independent candidates would be reimbursed a certain portion of their expenses if they got more than 5% of the vote.

President Ford said he thought the law was unconstitutional but signed it saying that he'd let the Supreme Court decide. The Supreme Court also found the law problematic but justified the favoritism toward the major party candidates as "rather than abridging, restricting, or censoring speech [of the independent objectors], it represents an effort to use public money to facilitate and enlarge public discussion and participation in the electoral process." The Court further justified the disparate public funding treatment "as relieving major-party candidates from the rigors of soliciting private contributions, in not funding candidates who lack significant public support, and in eliminating reliance on large private contributions for funding of conventions and campaigns, [which] does not invidiously discriminate against minor and new parties in violation of the Due Process Clause." The Court's logic has turned out to have been wishful thinking. In the 2020 presidential elections, the parties admitted to spending $14 billion just on federal elections, which comes to $113.67 per voter, not counting the money spent on state and local contests.

The 1968 election had pitted two former Vice-Presidents against each other, Republican Nixon, and Democrat Humphrey. Alabama Governor George C. Wallace, the American Independent Party candidate, and others received 13.86% of the vote, almost one in seven. So, the independent candidacy of Eugene McCarthy in the 1976 presidential contest eight years later was perceived to pose a threat to Democrat Jimmy Carter's campaign.

New York State had a byzantine and completely political ballot access law that permitted candidates to be knocked off the ballot for purely clerical errors. Each volume of a petition had to have a cover sheet giving the number of signatures and pages. Pages had to be numbered consecutively. For example, if, in a 200-page petition, page 77 came before page 76, judges had been known to invalidate all the signatures on pages 76 - 200, disenfranchising thousands of voters. New York's ballot access laws and traditions were so political that as late as 1996, Bob Dole had to go to court to get his name onto the Republican primary ballot.

The Federal Election Campaign Act had restrictions on how candidates who received public matching funds could spend their money. Challenging a valid petition with tens of thousands of signatures is a huge job. The Carter campaign asked the Federal Election Commission if public matching funds could be used to try and disqualify McCarthy's petition. The Commission said yes. So, notwithstanding the Supreme Court's decision that the use of public funds "represents an effort to use public money to facilitate and enlarge public discussion and participation in the electoral process," in the very first campaign with public funding, the money was used to reduce discussion and the number of choices offered to the voters. McCarthy could have gone to court, and probably would have won, but by then, he would have already been disqualified, and the election would be over. Election contests are all about deadlines. That's why the most important thing is to have honest county clerks, election boards, and administrators. Unfortunately, membership in many of the boards that oversee voting is restricted by law to Republicans and Democrats. As support for both parties declines with the electorate, to maintain their monopoly on political power, election officials are having to resort to gaming the system, deliberately violating the law, knowing that going to court is the only remedy available to the independent candidate. Even if the candidate wins in court, the decision will come long after the ballots have been cast.

And just to put McCarthy's disqualification into perspective, New York was having a Senate race in 1976. Five candidates were vying for the Democratic nomination to face U.S. Senator James Buckley. Jim Buckley, William F.'s brother, had been elected to the Senate in 1970 as a Conservative in a three-way race between Democratic congressman Richard Ottinger and Liberal Republican Charles Goodell, who had been appointed to fill the seat vacated by the death of Robert Kennedy.

There were two ways to get onto the ballot for the Senate race. A candidate had to either get 25% of the votes at the state convention or circulate a petition. Three candidates: Congresswoman Bella Abzug, New York City Councilman Paul O'Dwyer, and presidential counselor, Ambassador to India, and Harvard professor Daniel Patrick Moynihan received the requisite 25%. Former Attorney General Ramsey Clark and businessman Abraham Hirshfeld fell short and had to circulate petitions.

But the Secretary of the New York State Democratic Party neglected to send to the Secretary of State before the statutory deadline the names of the candidates who had been nominated at the convention. So the primary was going to be between Clark and Hirschfeld. But the Governor and legislature quickly passed a bill changing the date of the deadline so all five candidates could participate in the primary, which was won by Moynihan, who went on to serve twenty-four undistinguished years in the Senate. The rules were changed for the party candidates while valid petitions for independents were being disqualified in court.

The denouement in the 1976 New York election came ten days before the balloting when Maurice Ploscowe, the Republican candidate for the West Side congressional seat that had been vacated by Bella Abzug, killed himself by jumping off the balcony of his Central Park West apartment. The district included the offices of the New York Times and the studios of CBS and ABC. The front page story about Ploscowe's suicide was the first mention of his name in the New York Times that year. In other words, the Republican candidate for Congress in New York Times's own district had to kill himself to get covered in the paper.

So when I saw that Representative Jerrold Nadler, the successor to this West Side district that hasn't seen a truly contested election in almost half a century, was the impeachment manager for Trump's first impeachment, I didn't pay any attention because the outcome was a foregone conclusion. A representative who was appointed as a candidate and has run unopposed ever since is not going to oust a president elected by over 60 million voters.

Entrenching the Two-Party Bias

Every president since Carter, except Obama, has taken actions to further entrench anti-democratic norms in the political process. Reagan's surprise landslide in 1980 obscured the fact that 8.3% of the voters cast ballots for independent John Anderson, Libertarian Ed Clark, and others. So, Reagan got rid of the Equal Time provisions of the Federal Communications Act entirely, which has led to the rise of partisan television news where the broadcasters don't even pretend to be objective. As a result, in Reagan's 1984 re-election landslide, independent candidates got a mere 0.59% of the vote. In Vice-President Bush's 1988 victory over Mike Dukakis, Libertarian Ron Paul, and New Alliance candidate Lenora Fulani together got a paltry 0.71% of the vote. The American press became a two-party press. The ballot was edited in the public forum to limit voters' choices to the Republicans and Democrats.

Clinton, as Governor, had broken new ground by getting independent candidates excluded from publicly funded forums. The Arkansas Educational Television Commission barred Ralph Forbes, an independent candidate in the 3rd congressional district, from participating in a forum with his Republican and Democratic opponents. The Supreme Court ruled that his exclusion was okay because he was getting only 3% in the polls. In other words, Clinton and the Supreme Court have created a system where elections are about winning, not about discussing issues or hammering out a program for governing. As collateral damage, the Forbes decision effectively outlaws poor candidates if unknown candidates can't use public forums to spread their message.

The billionaires, however, had gotten the message that they could buy exposure whether the broadcasters and newspapers liked it or not. Ross Perot, a billionaire businessman, ran as an independent in 1992 and 1996, receiving 18.9% and 8.4% of the vote respectively. Many pundits claim Perot's candidacy cost Bush and Dole their elections, although there is ample proof of the contrary. (See Ross Perot did not Cost Bush the 1992 Presidential Election https://www.leinsdorf.com/perot.htm)

George H.W. Bush, his son George W. and the Supreme Court took away people's right to vote by stealing the election in 2000. George H.W. had been head of the CIA whose stock in trade is overthrowing governments. In 2000, it overthrew our own. Pundits claim that Ralph Nader, the Green Party candidate who got 2,882,995 or 2.74% of the vote, cost Gore the election. Gore won the election by a margin of 543,895 or 0.52%. The most that can be said is that Nader was the margin that might have prevented the race from being stolen. Nader's 97,488 votes in Florida would certainly have obliterated Bush's artificial 537 vote margin in the state. On the other hand, Nader did cost Gore the election by refusing to say he won. When asked if he had cost Gore the election, Nader answered, "Gore cost Gore the election."

In 2016, FBI Director James Comey threw the election to Trump by resurrecting, 11 days before the balloting, Hillary Clinton's use of a private computer server for State Department communications. An unwritten rule at the FBI is that politically sensitive indictments are not brought within 60 days of an election.

Independent and Third Party Candidates are Very Important in Close Elections

In 2016, after Hillary Clinton lost the election, even though she got 2,868,691 (2.1%) more votes than Trump, there were the usual calls to abolish the Electoral College and go to a popular vote where every vote is equal. The key point here is that neither Clinton nor Trump got a majority; they each got a plurality of 48.18% to 46.09%. Hillary's 4,469,978 margin in California, which was bigger than the total number of ballots cast in the ten smallest states combined, is the reason. Clinton's entire national popular vote margin and more came out of California. Hillary's margin of victory in California was bigger than the total number of votes cast in Alaska, Delaware, Washington D.C., Hawaii, Montana, Rhode Island, South Dakota, Vermont, West Virginia, and Wyoming combined. That's nine states and the District of Columbia whose total votes were less than Clinton's winning margin in California. Let me repeat that for emphasis. Hillary's MARGIN in California was bigger than the TOTAL number of BALLOTS CAST in the ten smallest states COMBINED.

Here's what really happened in 2016. The effect of the independent candidates was ignored, as usual. In 2016, there were three major third-party candidates for president: Libertarian Gary Johnson, who got 4,489,221 (3.28%) votes; Green Party Jill Stein, who got 1,457,216 (1.07%), Independent Evan McMullin 731,788 (0.54%); and a host of others 1,152,671 (0.84%) for a grand total of 5.73% of voters who couldn't stomach either Trump or Clinton, for whatever reason.

If the electoral college was abolished, every voter would have been just one of the 136,669,237 voters who cast ballots in 2016. The 5.73% who voted for the independents would have been irrelevant. But what actually happened in 2016 is that those 5.73% had a major impact on the outcome of the race.

Gary Johnson was the former Republican Governor of New Mexico, and William Weld, his vice-presidential running mate was the former Republican Governor of Massachusetts, so it's a reasonable thesis for analysis purposes that their votes came primarily from Republicans who couldn't stomach either of the major party nominees. Evan McMullin, a former CIA officer, was Chief Policy Officer for the House Republican Conference in the House of Representatives, left the Republican Party after Donald Trump was nominated. It is an equally reasonable assumption that votes for Jill Stein, the Green Party candidate, would have come primarily from Clinton.

Like in 2000, the Green Party candidate was accused of defeating the Democrat. Stein's vote totals were bigger than the margins of victory in four states: New Hampshire, Michigan, Pennsylvania, and Wisconsin. Hillary narrowly carried New Hampshire but lost the other three with their combined 46 electoral votes, which cost Clinton the election.

Missing from this analysis is the effect of Johnson's and McMullin's votes on Trump's totals. In addition to the four states previously mentioned, there were five other states, which Clinton carried, where the number of votes for the independent candidates exceeded the margin of victory: Colorado, Maine, Minnesota, Nevada, and New Mexico. In these states, the combined vote for Johnson and McMullin, minus the votes for Stein, was bigger than Clinton's margin of victory. So, while Stein may have cost Clinton the 46 electoral votes of Michigan, Wisconsin, and Pennsylvania, Johnson and McMullin cost Trump the 36 electoral votes of Colorado, Maine, Minnesota, Nevada, New Mexico, and New Hampshire.

Now, in which system does the individual voter have more power, one in which she is one of the total number of voters in the nation or one in the current electoral college system?

The table below shows the votes for the independent candidates compared to the margin of victory. The assumption is that the Johnson and McMullin voters would otherwise have voted mostly for the Republican while the Green Party voters would have voted for the Democrat. The numbers in bold show the number of votes lost to the defeated candidate that enabled the other candidate to win.

States Where Third Party 2016 Vote Totals Were Bigger than the Margin of Victory

State

Electors

Johnson + McMullin

Stein

Johnson + McMullin - Stein

Margin

Winner

Colorado

9

183,717

38,437

155,380

136,386

Clinton

Maine

2

39,992

14,251

25,741

22,142

Clinton

Minnesota

10

166,048

36,985

129,063

44,765

Clinton

Nevada

6

37,384

0

37,384

27,202

Clinton

New Mexico

5

80,366

9,987

70,487

65,567

Clinton

New Hampshire

4

31,841

6,496

25,345

2,736

Clinton

Michigan

16

180,313

51,463

128,850

10,704

Trump

Wisconsin

10

118,529

31,072

75,602

22,748

Trump

Pennsylvania

20

153,189

49,941

103,248

44,292

Trump

The balloting on Election night was far from the end of it in 2016. On Election night, Trump won 306 electors and Clinton 232. But when the electors met on December 12 to cast their ballots for president, seven voted for someone other than Trump or Clinton. Of these faithless electors, one voted for Bernie Sanders in Hawaii, three voted for Colin Powell and another for Spotted Eagle in Washington State, one voted for John Kasich, and another for Ron Paul in Texas.

While the seven faithless electors, five from Clinton and two from Trump were only 1.3% of the vote, they came from Hawaii, Washington, and Texas, meaning independents made a difference in 12 states with a total of 136 electoral votes, more than half of what's necessary to win the White House. Clearly, in close races, every voter counts much more in an electoral college system than in one where the candidate with the most popular votes wins. Candidates have to pay attention to more individual voters and more diverse concerns in an electoral college system where the minority concerns of independent and third parties count.

The result was the same in 2020 but with the opposite outcome. Whereas Trump and Clinton were separated by only 77,744 votes in Pennsylvania, Michigan, and Wisconsin which gave the presidency to Trump, Biden and Trump were separated by an even narrower 42,918 votes in Georgia, Arizona, and Wisconsin that put Biden in the White House.

Independents returned to the two-party fold. The 5.73% of the voters who skipped the two-party candidates in 2016 fell to 1.85% in 2020. Jo Jorgensen, the Libertarian candidate, got 1.18% of the vote compared to 3.28% for Johnson and Weld, a drop of ⅔, or 2.1%. The Green Party did even worse, dropping from 1.07% to 0.26%, or to less than of its haul in 2016, a fitting punishment for helping to elect Bush and Trump. The Green Party didn't get more than the margin of victory in any of the states carried by Biden.

The Libertarian totals were different; they threw the election to Biden.

States Where Third Party 2020 Vote Totals Were Bigger than the Margin of Victory

State

Electors

Jo Jorgensen, Libertarian

Margin

Winner

Arizona

11

51,465

10,457

Biden

Georgia

16

62,329

11,779

Biden

Wisconsin

10

38,491

20,682

Biden

Total

37

152,185

42,918

 

And what about the popular vote? Biden won by 7,059,526. He carried California by 5,104,121 and New York by 1,992,889. Biden's entire national margin came out of California and New York.

Biden's 2020 vote margin in California and New York compared to his national margin

State

Biden Margin

National Margin

Difference

California

5,104,121

 

 

New York

1,992,889

 

 

Total

7,097,010

7,059,526

-37,484

Without New York and California, Biden lost the country's popular vote by 37,484. The 2020 election was closer than most people think. Biden won by 1 out of every 323 votes cast in Arizona, 1 out of every 424 cast in Georgia, and 1 out of every 159 cast in Wisconsin. This explains the reason for the Republican and Supreme Court strategy of instituting voter photo identifications and other administrative, economic, and physical obstacles to voting that disproportionately impact the young, the poor, and minorities. Preventing small numbers of voters from casting ballots can have a huge impact in the electoral college.

Basically, the nation is split between the coasts and the interior. Biden and Trump each carried 25 states. Twenty-one of Biden's touch an international water boundary except four, while only ten of Trump's do so, with 15 being landlocked. The electoral college is designed to force the president to represent the whole country, not just one part.

Indicting Trump Is Biden's Contribution to the Two-Party Fix

The federal government has zero role in picking the President of the United States. Here's what the Supreme Court wrote when it stole the 2000 presidential election from the American people. "The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college. U. S. Const., Art. II, 1." So, how can Trump be indicted by the federal government for denying people their right to vote when there is no federal right to vote for electors? Letting states pick the president is one of the crucial checks and balances in the Constitution.

The second shoe to drop is impeachment. The only sanction against a president for her or his conduct in office is impeachment. Article II, Section 4 holds that, "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." They can be prosecuted after impeachment but only if they have been convicted.

The inclusion of misdemeanors makes it pretty clear that the framers of the Constitution wanted to insulate the actions of the president while in office from being prosecuted by any and every U.S. Attorney or county prosecutor. The idea of charging a sitting president with conspiracy on the basis of offering immunity to his lawyers, as was the case during Nixon's impeachment, is so outrageous as to be laughable. Whatever happened to attorney-client privilege?

Trump had a simple backup plan for his re-election strategy in 2020. He criticized the administratively, as opposed to legislatively, changed rules for mail ballots that resulted from the Covid-19 pandemic and urged his followers to vote at the polls.

Then, in case he lost the election, he would go to court to get the mail-in ballots thrown out, and get himself declared the winner on the basis of the machine vote alone. This is what happened in the 1997 Miami mayoral race. After allegations of fraud in the mail ballots, a judge ordered a new trial. Instead, all 5,000 absentee ballots were disqualified as "tainted." Mayor Xavier Louis Suarez was removed from office, and incumbent Joe Carollo was returned to office on the basis of the machine vote alone.

Ironically, Suarez's son, Francis Suarez, the current Mayor of Miami, has thrown his hat into the ring for the Republican nomination for president in 2024.

In 2020, Trump was trying to replicate Bush's stolen election from 2000 by getting the Supreme Court to throw out the mail ballots. Trump did what Gore should have done in 2000, namely to fight for his victory all the way through the electoral college. My point here is that even if Trump broke the law in an attempt to stay in office, it didn't work. Biden won and is president. That should have been the end of it. Indicting Trump is a cure that is worse than the disease. It's just another attempt by the federal government to try and control the selection of the president.

Trump isn't the first person to try and steal an election, and he won't be the last. George W. Bush tried and succeeded. Biden's indictment of Trump is an attempt to create a legal framework that ex post facto legitimizes Bush's theft of the 2000 election. But for someone to roll over and play dead when they lose an election by 42,918 is too much to expect. Trump was entitled to push the system to its limits. If nothing else, it educated the electorate about how presidents are chosen.

What I've tried to show is that the two-party system, by unfairly and illegally excluding independents, is a crooked game. The largely hostile public reaction to Trump's indictment reflects the feeling that they're all crooks. The fundamental source of the public's discontent with the political system stems from the fact that, in different ways, both the Republicans and Democrats seek to govern without some or all of the voters. That's not democracy. The two-party system has turned Americans from citizens into consumers at the expense of the electoral system discussing the issues and priorities necessary for governing. It won't change until the political system offers up more than two choices.

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Contact: Joshua Leinsdorf